3.3. Our witnesses agreed that the SiMAP
and Jaeger judgments go beyond the Directive's original
underlying principles. They stressed that these judgments make
compliance with the Directive extremely difficult for the health
sector. (QQ 27; 145; 148; 216) Although both actions originated
in the health sector, the rulings may also have wider repercussions
for other employment sectors, as is discussed in paragraphs 3.53-3.60
below.

3.4. In 2000 an amendment to the Directive[48]
brought sectors and activities formerly excluded from the Directive
within its scope. This included doctors in training, otherwise
known as junior doctors. A compromise amendment allowed a phasing-in
over five years from 2004 of the 48 hour weekly limit for junior
doctors.

3.5. As the BMA explained to us, by 1 August
2004 rest and break requirements become law and junior doctors
should not have to work in excess of 58 hours. By August 2007
their maximum working week should be brought down to 56 hours.
Full application of the 48 hour a week limit for junior doctors
is due by 2009. (pp 44-47)

3.33. According to the BMA, SiMAP would
have a particularly pronounced effect on the United Kingdom because
the ratio of junior doctor to consultant and senior doctor service
provision in the NHS was much higher than in other Member States.
We were struck by the significant difference (as quoted by the
BMA) between the prevailing ratio of 1.4 junior doctors to each
senior doctor in the United Kingdom and the EU average of 4 seniors
to each junior doctor. (Q 154)

3.34. The BMA added that the United Kingdom would
be also heavily affected by the SiMAP ruling because most
hospitals in this country rely on doctors in training providing
services: "at least 50% of our service is delivered by doctors
in training" whereas in other Member States training is concentrated
in far fewer hospitals. (Q 154)

3.35. The Government and the NHS Confederation
agreed that the SiMAP ruling went too far. (Q 227 and Q
259)

3.36. The Health Minister told us that the Government
did not think that SiMAP was "a sensible interpretation
of the Directive" and that "it was certainly not within
the intentions of the United Kingdom Government when we signed
up for the Directive that time spent asleep would somehow magically
count as time spent at work". (Q 259) But he thought that
it was "perfectly sensible" for the NHS to look at ways
of minimising resident on-call rotas and that there was a "strong
case" for looking at how hospitals have been traditionally
staffed at night. (Q 259)

3.37. The BMA, on the other hand, told us that
they were "broadly supportive" of the essence of the
SiMAP ruling "that every hour spent in hospital now
counts as work". They pointed to the regular pattern of disturbance
involved in overnight on-call duty. In their view SiMAP
represented "an overdue change". Although it could not
be achieved in this short term they were hoping for "a common
sense solution". They described a Danish proposal that compensatory
rest should be taken within 72 hours as "commendably sensible".
(Q 180)

3.38. The Health Minister explained the implications
of the Jaeger ruling for the NHS: "To require compensatory
rest to be taken immediately would potentially have a massively
destructive effect across the NHS and might mean that doctors
could not work the following shift on rota that they were required
to do. This would have knock-on consequences right across the
hospital. At the end of the day, the only people who would be
negatively affected would be the patients and that is a ridiculous
result". (Q 259)

3.39. The NHS Confederation put it in equally
strong terms: "Jaeger makes no sense at all in terms
of how you run NHS organisations" (Q 230). The BMA described
how it might work in practice and commented "This is nonsense".
(Q 180)

3.41. In order to avoid the full implications
of these judgments for hospitals, the Commission[51]
reports that France and Spain have chosen to apply the individual
opt-out for use in the health sector. Austria, Germany and the
Netherlands are planning to do so. (Q 24) Of the countries that
will join the EU on 1 May 2004, Slovenia has already applied the
opt-out to the health sector. Estonia, Hungary, Latvia and Lithuania
may also apply the opt-out to the health sector alone. [52]

3.42. We were relieved to hear from the DTI Minister
(Mr Sutcliffe) that, at the European Employment and Social Affairs
Council on 5 March, the Commission acknowledged the difficulties
that Member States are facing over SiMAP and Jaeger.
Mr Sutcliffe told us that the Commission had promised to find
a solution before the Summer. (Q 239)

3.43. The Health Minister told us he believed
the problems could be resolved in "a very sensible way which
does not drive a coach and horses through the fundamentals of
the Directive which is to provide proper protection for employees
against working practices that are safe and unsound". (Q
259)

3.44. We are encouraged by the positive preliminary
reports of the pilot schemes aimed at reducing hospital doctors'
working time which are currently being carried out in the NHS.
We hope that it will prove possible to extend schemes on these
lines to all United Kingdom hospitals as a contribution towards
the attainment of the requirements of the Directive without detriment
to standards of patient care or medical training.

3.45. We note, however, the unanimous evidence
we have had from Government and the medical profession that it
will be impossible for the NHS to comply with the extension of
the Directive to junior hospital doctors by August of this year
if the definition of working time in the SiMAP ruling is
applied as it stands.

3.46. We also note that there are differences
of opinion over the feasibility of applying the principles underlying
the SiMAP ruling in the longer term. We look to the Commission
to produce proposals as a matter of urgency that would have the
effect of deferring the implementation of the Directive for junior
doctors until a satisfactory solution to the problems posed by
the SiMAP ruling can be devised and agreed with Member
States.

3.47. We also urge the Government to continue
to work closely with representatives of the medical profession
and NHS management, as well as with the Commission and other Member
States, in attempting to devise a common approach to the definition
of working time for hospital doctors on-call duties which is consistent
with the spirit of the Directive as interpreted in the SiMAP
judgment whilst being workable in practice and to agree on a reasonable
programme to phase in whatever changes are needed without detriment
to standards of patient care or medical training.

3.48. As we understand it from the evidence
we were given, we believe more attention should be paid to the
particular difficulties which the SiMAP judgment will cause
for the United Kingdom because of:

the relative shortage of doctors in the United
Kingdom in comparison with other Member States,

the striking difference in the ratio of junior
to senior doctors in the United Kingdom of 1.4 to one, compared
with the EU average of 4 seniors to each junior doctor;

the long-standing British practice of delivering
at least 50 per cent of hospital service through doctors in training,
and

the British tradition of dispersing doctors
in training to virtually every hospital, rather than concentrating
them in fewer centres as in most other Member States.

3.49. We note the Health Minister's optimism
about finding "a very sensible way which does not drive a
coach and horses through the fundamentals of the Directive which
is to provide proper protection for employees against working
practices that are unsafe and unsound". Nevertheless, it
is clear to us from the overwhelming evidence we have received
that the effect of the interpretation of the Directive in the
Jaeger judgment is perverse and wholly impractical to implement.

3.50. In view of the extremely serious situation
created by the Jaeger judgment, we call upon the Government
to indicate as a matter of urgency how they propose to deal with
the problem of doctors' working time and compensatory rest from
the extension of the Directive to junior doctors in August 2004
until such time as a satisfactory solution can be found.

3.51. In the meantime, we encourage the Government
to continue their efforts with other Member States to convince
the Commission that the serious practical implications of the
Jaeger judgment for all Member States demand rapid and
effective remedial action through an amendment of the Directive.

3.52. We agree with our witnesses that the
best solution would be to get rid of the automatic requirement
for immediate compensatory rest completely. Ways should be found
of providing compensatory rest within a reasonable time.